[T]he Court finds Sections 2257 and 2257A and their corresponding regulations to be constitutional under the First Amendment, both as-applied and facially. It also finds the Statutes and regulations to be constitutional under the Fourth Amendment, except for in one regard – the allowance of inspections at the residences of producers, without prior notice, cannot be justified on this record.

Id. at 2.

The basis for the ruling was that the government could not demonstrate that the requirement met the constitutional standard. As the Court stated, “[g]iven these two streams of evidence in the record – demonstrating advance notice would not undermine the regulatory scheme, but a lack of such notice significantly burdens producers who maintain records at home – the Court finds the regulations’ lack of a notice requirement, as to searches at bona fide residences, unreasonable …” Id. at 69.

The Court focused on the fact that many producers of adult content keep the records in their homes. Therefore, the requirement that the FBI be allowed to inspect the records without advance notice meant that the residents would be burdened by the need to remain on premises to allow access. This burden was found to be unconstitutional.

18 U.S.C. 2257 generally serves as an insurmountable impediment to posting a person’s sexually explicit photographs on a revenge porn site. These sites consist of video and still pictures that are posted without the consent of the person being photographed. Normally, they stem from either (a) former lovers who received the pictures for their private use when the relationship was still viable or (b) spurned suitors who wish to take out their anger on the person whose photographs they happened to obtain.

Either way, it is a virtual certainty that 18 U.S.C 2257 will not be complied with; it requires the photographed person’s identification to be provided to a custodian of records. Since the person being photographed presumably did not agree to have the photographs posted (or may not know about it at all), it is highly likely that it will be impossible to obtain that identifying documentation.

There are at least two suits currently pending against revenge porn sites based upon the violation of a duty of care established by 18 U.S.C 2257. Once such suit is against Texxxan.com and the other against Ugotposted.com.

These suits are highly significant for another reason. Since 18 U.S.C 2257 was not complied with, there is no way of being certain that the photographs involved persons who are of age. The intent of the law is to prevent of dissemination of child pornography; its violation may very well lead to that result.

In in re: Grand Jury Subpoena Duces, 368 F. Supp. 2d 846 (W.D. Tenn. 2005), John Doe 1 & 2 (collectively, “Petitioners”) were served with a subpoena to testify before a Federal Grand Jury. Pursuant to 18 U.S.C. §2257, the subpoena required the Petitioners to bring with them any and all records pertaining to models used by their company Petitioners attempted to quash the subpoena by arguing that it violated their 5th Amendment right to be free from self-incrimination. The United States asserted that the 5th Amendment did not protect the Petitioners because the documents requested were records required to be kept pursuant to §2257.

(1) contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and

(2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;

shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

In Shapiro v. United States, the Supreme Court held that the 5th Amendment privilege against self-incrimination does not apply to records that are required to be kept pursuant to a valid regulatory scheme. Shapiro v. United States, 335 U.S. 1, 17-18, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948). However, the “required records” exception is construed narrowly in preservation of the 5th Amendment’s constitutional purpose. United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944). The government’s request for information will be granted under the exception if it meets the following three requirements:

(1) the purpose of the government’s inquiry must be essentially regulatory, rather than criminal;

(2) the records must contain the type of information that the regulated party would ordinarily keep; and

(3) the records must have assumed public aspect which render them at least analogous to public documents.

The Supreme Court explained that §2257 targets a specific group of people. Specifically, it targets producers of media depicting sexually explicit conduct that utilizes performers who either are, or appear to be, minors. Additionally, the Court noted that although the record keeping requirement applies to “all producers of media depicting sexually explicit conduct,” it is not necessarily regulatory. The requirement does not foreclose the possibility that it targets a select group inherently suspect of criminal activities. Further, the production and distribution of child pornography is inherently illegal.

The Supreme Court concluded that §2257 is not regulatory in nature. This is because it targets a highly selective group that is inherently suspect of criminal activities, and is a part of a criminal enforcement scheme that seeks eradication of child pornography. Accordingly, the Supreme Court granted Petitioners’ motion to quash the subpoenas because the government did not meet the first prong of the required records exception, to wit: that the purpose of the government’s inquiry must be essentially regulatory, rather than criminal.

Does aproducer of a breastfeeding instructional video have to abide by §2257? Whatabout the mother who volunteers to allow herself and her baby to be filmed? Howabout somebody who illegally uses the breastfeeding video to create an adultvideo?

This wasaddressed in a case heard in M.S. v. Meredith Corporation, United StatesDistrict Court of New Jersey, August 2,2012 (Civil Action No. 11-cv-5180). In that case, the plaintiff, a new mother,volunteered to allow the defendant, a media and marketing corporation that aimsat educating women on various topics, film a “how to” video for breastfeeding.The defendant did not pay the plaintiff for filming the video; the plaintifffelt as if her experience as a new mother could help women who are consideringbreastfeeding. According to the plaintiff, the defendant promised her thatneither her name nor that of her daughter would be revealed. The plaintiff alsoclaimed that the defendant told her the video would only be played on thedefendant’s website and on cable television for educational purposes.

Unfortunately,while searching her name on the internet, the plaintiff discovered that thevideo of her breastfeeding was being displayed by an adult website. Thatwebsite included both her full name and her daughter’s first name on the video.A man named “Nizard” was the culprit. He had access to the video because thevideo had been posted on YouTube by the defendants. This was done in spite ofthe fact that plaintiff had been assured it would not.

18 USC §2257makes it a federal crime to fail to comply with certain record keeping andreporting requirements. Such requirements must be followed when one produces a film,book, magazine etc. which includes “sexually explicit conduct.” “Sexuallyexplicit conduct” is defined under §2256 (2)(A):

“Sexually explicit conduct” meansactual or simulated—

(i) sexualintercourse, including genital—genital, oral-genital, anal—genital, or oralanal, whether between persons of the same or opposite sex.;

(ii) bestiality;

(iii) masturbation;

(iv) sadisticor masochistic; or

(v) lasciviousexhibition of the genitals or pubic area of any person;

Applyingboth §2257 and §2256, it would appear that only Nizard would be liable underthe statute; not the mother nor the defendant. The only way the mother or thedefendant would be liable under §2257 is if breastfeeding were considered“sexually explicit conduct.” Interpreting the statute makes it clear that it isnot. Breastfeeding clearly does not fall into one of the sexual acts listed in§2256. While the statute states that sexually explicit conduct includes “sexualintercourse, including genital—genital, oral-genital, anal—genital, or oralanal, whether between persons of the same or opposite sex” which clearlybreastfeeding is not. Further, one would be hard-pressed to argue before aCourt that breastfeeding a newborn has a sexual component in the first place;hence the intent of the statute clearly is not to include it within the law’spurview.

However,when Nizard illegally added the video to an adult website, he entered the realmof §2257. Although, the pornographic scenes which Nizard combined with the breastfeedingvideo are not described in the case, it is likely that such scenes involve atleast one of the acts listed in (i) through (v) of §2256. Thus, under suchassumption, a §2257 claim against Nizard for failure to follow reportingrequirements would be available against him.

Recently, an enterprising producer of adult content created a pornographic film utilizing the Sims cartoon characters. While of course, this is likely a trademark and copyright violation – since it is doubtful that the owners of the Sims software would license their intellectual property for creating an adult film – the question arises as to whether it is also a violation of 18 U.S.C. 2257.

The answer is not straight forward. The video appears to utilize pilfered content from the Sims imagery which is not adult oriented. However, it intersperses that material with actual adult content involving actual actors. Therefore, it is likely that 18 U.S.C. 2257 would apply.

We would be interested in hearing any thoughts that readers of this blog might have on this topic.

If a defendant fails to adhere to the record-keeping provisions of section 2257 has he also violated section 2252A of the Child Pornography Protection Act? The Federal District Court for the Eastern District of Michigan recently addressed this question in Doe v. Peterson, No. 2:09-cv-13138-PDB-PJK (E.D. Mich. March 24, 2011).

In that case, Plaintiff sued the owners of a website that posted nude pictures of Plaintiff sent from an unknown person that were intended to remain private between Plaintiff and her boyfriend. Even after Plaintiff contacted the site asking that the pictures be removed because they were submitted without her consent, the pictures remained on the website. Plaintiff claimed that she was a minor when the pictures were taken and relayed this information to the site when she initially contacted them. It was only after being served with the complaint that the photos were taken down a day later.

Plaintiff alleged, among other things, that Defendant violated 18 U.S.C. §2252A(a)(2), which prohibits any person from knowingly receiving or distributing child pornography that has traveled in interstate or foreign commerce. Id. at 5. Plaintiff moved for summary judgment and claimed that there was no genuine issue of material fact regarding whether Defendant knowingly participated in receiving or distributing child pornography. See Id. Plaintiff claimed that because Defendant violated §2257, which requires publishers of pornographic material to verify the age of models, Defendant could not therefore claim he did not know how old Plaintiff was. Id.

Defendant’s website encouraged men to submit nude pictures of their ‘ex-girlfriends, ex-wives, current girlfriend or wife, or any female showing her stuff.’ Id. at 2. Although the site contained “submission rules” requiring that models be 18 or older, Defendant admitted that he had no real way of knowing if people followed the rules. The only safeguard Defendant took was judging to see whether the models could pass for 18. See id. Defendant claimed that he never was the recipient of any correspondence from Plaintiff regarding her request that the photos be taken down nor did he receive an email stating that Plaintiff was underage. However, Plaintiff argued that Defendant’s claim to have not received the emails, coupled with Defendants failure to follow the verification requirements of §2257, demonstrated that the Defendant was “deliberately ignorant” of Plaintiffs age. Plaintiff claimed this could satisfy the “knowingly” requirement of §2252A. Further, Plaintiff argued that if nothing else, the fact the Defendant didn’t remove her pictures until one day after receiving the complaint showed that Defendant undisputedly knew Plaintiff was a minor, in violation of §2252A.

The Court disagreed with Plaintiffs position. First, because Plaintiffs age at the time the photos were originally taken was at issue, this rendered Plaintiffs request for summary judgment inappropriate. Further, the Court stated that even if Plaintiff’s age was not in dispute, Plaintiff’s motion for summary judgment would still be denied because violation of §2257 does not necessarily establish that Defendant “knowingly” violated section 2252A. The court noted that the Defendant did not have actual knowledge that Plaintiff was a minor because the correspondence did not contain any real evidence of Plaintiffs age, such as a birth certificate, so at most, Defendant had “inquiry notice,” requiring the Defendant to investigate the matter further . See id. at 6.

The Court agreed with Defendant’s contention that there was no reason to suspect that Plaintiff was a minor from looking at the pictures posted on the website and so Defendant should not be found deliberately indifferent. Id. Further, the court did not take issue with the timeframe with which the Defendant removed the photos from the website after being served with the complaint. At most, the Court found that Plaintiff’s allegations established that there were issues of material fact regarding whether the Defendant knew Plaintiff was a minor, but this did not amount to proof that 18 U.S.C. §2252A was violated as a matter of law. See id. at 7. Ultimately, Plaintiff’s motion for summary judgment was denied.

The best practice is to verify the age of participants when posting anything associated with the adult industry. One should be cautious of the possibility of interacting with minors and take measures to ensure that the subject’s age is accounted for.

The relevant law is contained in Title 13, Section 3201 et seq. of the Arizona Revised Statutes. It states:

13-3201: Enticement of persons for purpose of prostitution; classification

A person who knowingly entices any other person into a house of prostitution, or elsewhere, for the purpose of prostitution with another person, is guilty of a class 6 felony.

13-3202: Procurement by false pretenses of person for purpose of prostitution; classification

A person who knowingly, by any false pretenses, false representations or other fraudulent means, procures any other person to have illicit carnal relation with another person, is guilty of a class 6 felony.

13-3203: Procuring or placing persons in house of prostitution; classification

A person who knowingly receives money or other valuable thing, for, or on account of, procuring or placing in a house of prostitution, or elsewhere, any person for the purpose of prostitution is guilty of a class 5 felony.

13-3204: Receiving earnings of prostitute; classification

A person who knowingly receives money or other valuable thing from the earnings of a person engaged in prostitution, is guilty of a class 5 felony.

13-3205: Causing spouse to become prostitute; classification

A person who knowingly by force, fraud, intimidation or threats, causes his or her spouse to live in a house of prostitution or to lead a life of prostitution, is guilty of a class 5 felony.

13-3207: Detention of persons in house of prostitution for debt; classification

A person who knowingly detains any person in a house of prostitution because of a debt such person has contracted or is said to have contracted, is guilty of a class 5 felony.

13-3208: Keeping or residing in house of prostitution; employment in prostitution; classification

A. A person who knowingly is an employee at a house of prostitution or prostitution enterprise is guilty of a class 1 misdemeanor.

B. A person who knowingly operates or maintains a house of prostitution or prostitution enterprise is guilty of a class 5 felony.

13-3209: Pandering; definitions; methods; classification

A person is guilty of a class 5 felony who knowingly:

1. Places any person in the charge or custody of any other person for purposes of prostitution.

2. Places any person in a house of prostitution with the intent that such person lead a life of prostitution.

3. Compels, induces or encourages any person to reside with that person, or with any other person, for the purpose of prostitution.

4. Compels, induces or encourages any person to lead a life of prostitution.

13-3210: Transporting persons for purpose of prostitution or other immoral purpose; classification; venue

A person knowingly transporting by any means of conveyance, through or across this state, any other person for the purposes of prostitution or concubinage, or for any other immoral purposes, is guilty of a class 5 felony. The prosecution of such person may be in any county in which such person is apprehended.

13-3211: Definitions

For the purposes of this chapter, unless the context otherwise requires:

1. “Employee” means a person who conducts lawful or unlawful business for another person under a master-servant relationship or as an independent contractor and who is compensated by wages, commissions, tips or other valuable consideration.

2. “House of prostitution” means any building, structure or place used for the purpose of prostitution or lewdness or where acts of prostitution occur.

3. “Operate and maintain” means to organize, design, perpetuate or control. Operate and maintain includes providing financial support by paying utilities, rent, maintenance costs or advertising costs, supervising activities or work schedules, and directing or furthering the aims of the enterprise.

5. “Prostitution” means engaging in or agreeing or offering to engage in sexual conduct with another person under a fee arrangement with that person or any other person.

6. “Prostitution enterprise” means any corporation, partnership, association or other legal entity or any group of individuals associated in fact although not a legal entity engaged in providing prostitution services.

7. “Sadomasochistic abuse” means flagellation or torture by or upon a person who is nude or clad in undergarments or in revealing or bizarre costume or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.

9. “Sexual contact” means any direct or indirect fondling or manipulating of any part of the genitals, anus or female breast.

10. “Sexual intercourse” means penetration into the penis, vulva or anus by any part of the body or by any object.

13-3214: Prostitution; classification

A. It is unlawful for a person to knowingly engage in prostitution.

B. This section does not prohibit cities or towns from enacting and enforcing ordinances to suppress and prohibit prostitution that provide a punishment for misdemeanor violations that is at least as stringent as provided in this section.

C. For the purposes of sentencing under this section, a previous violation of any city or town ordinance that prohibits prostitution and that has the same or substantially similar elements as this section shall be deemed to be a previous violation of this section.

D. A person who violates this section is guilty of a class 1 misdemeanor, except that:

1. A person who is convicted of a first violation of this section shall be sentenced to serve not less than fifteen consecutive days in jail and is not eligible for probation or suspension of execution of sentence until the entire sentence is served.

2. A person who is convicted of a second violation of this section shall be sentenced to serve not less than thirty consecutive days in jail and is not eligible for probation or suspension of execution of sentence until the entire sentence is served.

3. A person who is convicted of a third violation of this section shall be sentenced to serve not less than sixty consecutive days in jail, is not eligible for probation or suspension of execution of sentence until the entire sentence is served and shall complete an appropriate court ordered education or treatment program.

4. A person who has previously been convicted of three or more violations of this section and who commits a subsequent violation of this section is guilty of a class 5 felony, shall be sentenced to serve not less than one hundred eighty consecutive days in jail and is not eligible for probation or suspension of execution of sentence until the entire sentence is served. This paragraph does not prohibit a person from being sentenced to serve a period of incarceration in the state department of corrections.

The Third Circuit of the United States Court of Appeals recently was presented with another in a series of challenges to 18 USC Section 2257. Free Speech Coalition Inc., v. Attorney Gen. of the United States, No. 10-4085 (3d Cir. April 16, 2012). Importantly, the lower District Court had dismissed the case entirely. However, the Third Circuit vacated much of that determination and remanded the case back to the District Court for further proceedings.

The case was rather involved, and there were a number of bases for the remand. However, one of the more notable was that the claim under the First Amendment of the U.S. Constitution should not have been dismissed. The Third Circuit held that while 2257 was enacted to protect children from sexual exploitation, its breadth was so wide that it “appl[ied] to more than those producers who sexually exploit children. They mandate compliance by ‘[w]hoever produces’ sexually explicit depictions regardless of the performers actual or apparent ages.” 18 USC 2257(a), 2257A(a).

Importantly, the Third Circuit did not opine as to whether the statute was so over broad that it violated the First Amendment, but it did hold that the plaintiff should have had the opportunity to develop a record to seek to make such a case.

Importantly, the Court did not find that the FCC was precluded from enforcing the statute at all. Instead, the Court found that the FCC had not given “fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent.” On that basis, the Court found that this enforcement regime was unconstitutionally vague.

It remains to be seen whether the FCC can promulgate regulations that will provide sufficient advance notice of what will and will not be deemed obscene.

The requirements of 18 U.S.C. §2257 (“2257”) impose certain record-keeping obligations on the producers of sexually explicit material. The constitutionality of the statute has been challenged in recent years, but courts have usually indicated that 2257 is constitutional. An interesting example of such a challenge was heard by the U.S. Court of Appeals for the Sixth Circuit in 2009. Connection Distrib. Co. v. Holder, 557 F.3d 321 (6th Cir. Ohio 2009).

That case focused on how the 2257 requirements apply to “swinger magazines,” which consisted of sexually explicit advertisements by couples who invite other couples to share sexual experiences. The appellants were the publishers and potential advertisers of the magazine. They brought an action against the U.S. Attorney General, seeking to enjoin enforcement of the 2257 record-keeping requirements as they relate to the content of a swingers’ magazine content.

In order to comply with 2257’s record-keeping requirements, producers are required to (a) obtain certain actor identification and (b) maintain that information in the required manner. The appellants in Connection argued that requiring the publishers to maintain records of their advertisers’ identities and ages was an infringement of their freedom of speech. They argued that the statute was unconstitutional both as applied to the publishers and the advertisers. They also took the position that it was unconstitutional on its face. The U.S. District Court for the Northern District of Ohio granted summary judgment in favor of the Attorney General. The publishers and potential advertisers appealed to the U.S. Court of Appeals for the Sixth Circuit.

In determining the constitutionality of the statute, the Court of Appeals applied an intermediate level of scrutiny. A statute survives intermediate scrutiny if it:

advances a “substantial” government interest;

does not “burden substantially more speech than is necessary;” and

leaves open “ample alternative channels for communication.”

Ward v. Rock Against Racism, 491 U.S. 781 (1989).

The Court held that the statute was constitutional. First, the Court held that the statute was not a presumptively invalid content-based regulation of speech. The Court found there to be a substantial governmental interest in deterring the production and distribution of child pornography. It listed several reasonably tailored ways the statute’s universal age-verification requirement advanced the interest. This included ensuring that primary producers confirm the age of their performers and prevent children from attempting to pass themselves off as adults. As a result, it found the statute justified in regulating the records of those producing sexually explicit material.

The magazine and its advertisers further argued that the law was overbroad and would be unconstitutional as applied to a magazine that depicted only “mature adult models” who “are clearly and visibly not minors.” Connection at 336. However, the Appellate Court did not find this to be sufficient to justify declaring the statute invalid. It found that hypothetically unconstitutional applications of the statute to sexually explicit depictions of obviously mature adults did not demonstrate the level of substantial over breadth that is necessary for invalidation.

It appears unlikely that 2257 will be found unconstitutional anytime soon. Therefore, it is important that those producing sexually explicit films and other materials become familiar with the statute’s requirements in order to avoid criminal liability.

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Internet Picture Removal[MUSIC PLAYING] One of the issues that has come up again and again in our practice relates to the wrongful posting of information about another person on the Internet. This is another example of how the law has simply not kept pace with the developments that have occurred in the 21st century. It used to be that when someone gossiped about another person, or said something that wasn't true, that ancient concepts of defamation, concepts of interference with someone else's business or prospective economic advantage, these common law concepts would protect the person. It used to be that when you gossiped about somebody else, you did it in the town square. You did it at a community meeting. You did it behind closed doors. Needless to say, that's not the situation anymore. Now when someone wants to say something about someone else that's not true, when someone wants to defame them and hurt their reputation, all they need is a computer, an Internet connection, and a bad motive, and they can literally make a worldwide comment about this person. They can post something that can be seen in every country in the world. Millions of people. How do you deal with that from a legal perspective? And the answer is that there are techniques that we can use. They are not perfect and they're not complete. But there are techniques. For example, what was it that this person said? Was it opinion? Or was it a fact? And if it was a fact, can it be proven to be an untrue fact? Can it be proven that this person knew that it was untrue or that it was said negligently? All these questions come into play in the context of something that is said that should not have been said because it was possibly defamatory. But there's another level. And the other level is, can we find a way to say that this is also a violation of intellectual property rights? In other words, think about it. Did this person lift a picture from a website that they didn't own? Or took it from a camera or cell phone if they didn't have access to? And they should not have access to it. And somehow, they got a hold of it. And they posted it as part of the possibly defamatory material. Wouldn't that begin to state a claim for infringement of intellectual property? And if so, is there a way of being creative in the representation in the legal analysis so that we're not limited to whether this thing was true or not? Certainly we're not limited to whether it was a bad thing to say or not. We know that. It was a bad thing to say. But also is there legal significance to what they did that goes beyond the truth of the matter? These are the sorts of questions that we ask when we deal with people who are the victims of wrongful posting. There's this new concept of revenge pornography that is taking our culture by storm. In essence, it's someone taking a picture, often from a girlfriend or boyfriend, a picture that was taken in the privacy of that relationship. And after that relationship is over, that one of the people taking and posting the picture online, making it publicly available in order to humiliate or otherwise punish the person after breaking up with them. Hence the term revenge pornography. Unfortunately, the minute a picture is taken and shared on the Internet, it becomes instantly available to an exponential number of people. Once it's on one website, a lot of times these adult websites have a tendency of just stealing pictures. So it's not the fact that they have the rights to it and are going to prohibit their competitors from taking it. But there tends to be a common practice in the industry of it being on one website. The next website steals it, posts it, and it just is an ongoing effect where one person posted one picture. And all of a sudden, it's everywhere. And now you're dealing with innumerable websites that you now have to contend with to get the picture actually removed from the Internet. Unfortunately, this is a little bit of a unique legal situation in that the clients are often dealing with a huge emotional undertone to this representation. They are often coming to us having been humiliated. They are embarrassed that the pictures are out there. They don't want their employer, their kids, their kids' friends, or even sometimes their spouses to know that these pictures exist. We have to sit there and say, very dispassionately, very objectively, is this the kind of thing that we'll be able to convince a judge violated the law? Our firm welcomes inquiries about this sort of thing. It's something that we take very seriously. And it's something that we like to help with as necessary. [MUSIC PLAYING]